Supreme showdown

"DID YOU EVER WAKE UP in the morning and feel like the whole world was against you?" attorney Jeffrey Needle asks. Come December, just after the World Trade Organization ministerial meeting finishes in Seattle, Needle may join Washington State's attorneys when they go before the US Supreme Court and argue that—contrary to the claims of most of the world's industrial democracies, shipping powers, and maritime trade organizations—the state has the right to set safety rules for oil tankers entering its waters, above and beyond what US law and international treaties mandate. His clients, three local environmental groups, are intervenors in a case with major implications not just in Washington but on coastlines throughout the nation and, possibly, the world. It's a case that resonates especially amidst the current turmoil over the WTO and turns on many of the same sovereignty issues. Washington and its allies are fighting a century-old (and in some views badly outdated) tradition of admiralty law for the authority to set antispill protections above and beyond the global common denominator. And that maritime law is the predecessor to the international trade rules that the WTO is now using to squelch "trade-restrictive" health and safety standards in other fields.

Can "states' rights" defend us against oil spills? The Supreme Court will decide.

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Needle and his partner John MacDonald would tag-team for the third time with state attorneys after successfully defending all its tanker regulations against a federal lawsuit and most of them against an appeal to the Ninth Circuit. Opposing them is the Norway-based association Intertanko, with 280 members operating 2,000 tankers worldwide, which sued to overturn the state rules in 1995, and the US government, which intervened on the tankers' side after Intertanko lost at trial and appealed. The feds and Intertanko argue that federal law and international treaties bar the state from mandating safety measures beyond the global norm. They get support from an impressive roster of "friends of the court" who've filed briefs, separately or jointly, opposing the state: the governments of Canada, Japan, Britain, and 12 other European nations; a dozen or more national and international business, shipping, and insurance organizations; and one local group, the Puget Sound Steamship Operators Association.

All these forces have mustered against what seems at a glance a fairly humdrum set of procedures and standards for tankers plying Washington waters, ranging from mechanical inspections to English proficiency for officers to drug and alcohol tests for crew. That last provision may reflect the origin of the state rule: They were adopted under the authority of the US Oil Pollution Act (OPA) of 1990, which was itself prompted by the 1989 Exxon Valdez spill, when a boozy captain put a supertanker on the rocks. The state also requires that tanker operators file prevention plans providing for the "best achievable protection" against spills—a standard not required in federal law and a key point of contention.

INTERTANKO AND THE FEDS argue that state rule-making is preempted by a slew of federal laws and international treaties governing tanker operations, and by the federal government's "comprehensive presence" in maritime matters. And they warn that this state's meddling with tankers (with other states sure to follow if Washington prevails) will wreak havoc with the "reciprocity and uniformity" essential to maritime regulation and commerce. The feds contend, in their appeal to the Supreme Court, that this "substantially undermines the ability of the United States to speak with one voice in international negotiations to promote tanker safety and environmental protection." On a more concrete level, Richard Buchanan, an attorney for the Steamship Operators, notes that one state requirement, that each tanker coming to Washington report all the accidents and near-misses it's had in the past five years, is near impossible: "They would have to file and update this constantly." And how could a ship's new owner know what had happened to it before?

The constitutional questions loom equally large for the state system's defenders. They argue that "the right of Washington to enact oil spill regulations [concurrent with federal rules] is critical to a balance of federalism necessary to allow individual states the autonomy envisioned by the Tenth Amendment" (which reserves to the states and people all powers not granted the federal government). They also argue that the "international vessel management regime" that the feds say they must uphold is smoke and mirrors: "Reciprocity and uniformity are amorphous international goals and do not exist in any recognizable order, and certainly not in practice." That's something to consider when you hear similar arguments made for uniform, reciprocal trade rules in the WTO debate.

Ordinarily, federal authority would preempt state authority, but the state moved to regulate tankers under a special license from the feds. The Oil Pollution Act specified that federal regulation would not preempt "the authority of any State or political subdivision thereof from imposing any additional liability or other requirements . . . relating to the discharge, or substantial threat of discharge, of oil." This, the state's defenders insist, "is express authorization to the states to enact rules and regulations to prevent oil spills."

The feds and Intertanko dispute this conclusion, and Needle and company defend it, on many textual and constitutional grounds too abstruse to recount here. Buchanan also warns that if the state continues to prevail in court, it will open the door to "legislative chaos." That's because OPA grants "subdivisions"—i.e. cities, counties, and port districts—the same authority over oil pollution as the state. How could a shipper ever keep up if they all start writing their own tanker rules? "That's a red-herring argument," counters Washington assistant attorney general William Collins. "They're projecting out into the future"—an unlikely future, to be sure. Still, Buchanan's brief does cite one instance in which a local government tried to "interfere" with oil shipping, though it used the Shoreline Management Act rather than tanker rules to do so: Jefferson County ordered companies supplying bunker fuel to ships in Port Townsend Bay to undergo environmental review and get a development permit.

The real danger, the shippers argue, is that other states and their subdivisions will follow Washington's lead in regulating tankers. Indeed, Maine, California, and some other coastal states have already done exactly that. California will file an amicus brief supporting Washington, and other states may join in it. Its attorney Michael Neville says California also worries that an adverse precedent in Intertanko might undermine the state's authority in other environmental areas. San Juan County has also joined in the case, and other Washington counties would like to as well. But the state's defenders fear that might give credence to the shippers' warnings that every little podunk government will muck with maritime law if the Court lets them.

WOULD STATE TANKER RULES lead to a regulatory Babel? In other environmental fields, state and local governments have tended to converge around model rules or let one play a vanguard role. That's what California has done with auto emission standards, and auto makers have improved their technology to meet its requirements. Just as California faces special air-pollution problems, the defenders of Washington's tanker rules contend, this state's labyrinthine waterways are especially vulnerable to spills.

States' rights don't impress the various nations and international maritime organizations who want to sail under consistent global rules and see the states confine themselves to the terms the United States negotiates. But they may impress the Supreme Court justices who will hear the case next month. "If we ever had a court that was amenable to states' rights arguments," says Needle hopefully, "this is it." He's not blind to the irony of a liberal lawyer like himself taking hope from this fact. In past decades, "states' rights" was the ideology of segregationists and reactionaries, and "national sovereignty" the banner of conservative isolationists. Now they're invoked by environmental, labor, and human rights advocates as bulwarks against the depredations of corporate globalism. And as the old order changeth, the sea lanes of Puget Sound are a front line in the struggle to define the new world order.